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Wednesday, December 19, 2012

A Contrarian Historical Perspective on Robert Bork

by Paul Alan Levy

The death of Robert Bork today has revived the old debate about the defeat of his nomination to the Supreme Court, but I am sorry to see many of the ordinarily reliable sources missing the boat in their discussions. The New York Times, for example, talks about how liberals opposed him because of "their sense that he cared more about abstract legal reasoning than the people affected by it." Jeffrey Rosen writes in The New Republic about Mr. Bork's "ideological open-mindedness" and how unfairly his record was portrayed by those darn liberals.

I lived through that fight, and although I saw some of those arguments made, the recollection of Mr. Bork that is being perpetuated in such reports is much too kind to him.

Robert Bork claimed to be a strict constructionist, and to
follow principle in decisionmaking, but the anti-Bork arguments that the Times and Jeffrey
Rosen discusses were only part of the problem.

A detailed analysis of his judicial record belied his claim to be principled.
We at Public Citizen Litigation Group had had ample experience with his record on the DC Circuit, and we felt that he was different from the other conservative judges on that passionately divided appellate court. In fact, in our office, and among many other lawyers we knew, to "get borked" was to be on the receiving end of a conservative judicial decision lacking any support in the record or the cited precedents.

Spurred by what we felt was a measure of expertise as repeat litigators in that court, we conducted a detailed, statistical analysis of his record,
and we were able to ascertain that his claim to principle was only an
intellectual pretense, and that in the cases in which the judges divided, that
is to say, the cases in which the arguments were close enough that appellate
judges disagreed about the proper outcome, Robert Bork's vote could be
predicted with 100% accuracy by determining who the parties were and on which
side corporate, bureaucratic, and individual interests lay. Our report was
self-published, but can be found at 9 Cardozo L. Rev. 297 (1987),

So the problem with Mr. Bork was not that he was too intellectual to care about
real people, but rather that he was an ideologue who cared only about policy
and politics and not at all about legal principle OR the individual people
involved. He was, in short, an intellectual fraud.

We had never before taken sides in a judicial nominating fight, and we never
opposed a nomination afterward, although privately we have had strong feelings about a number of nominees -- my colleague Alan Morrison, in fact, supported Justice Scalia's confirmation
because he was confident in his intellectual honesty even though we
usually disagreed with him. We felt that Antonin Scalia was willing to listen to arguments, and to decide cases based on the law, to be sure looking with his own ideological perspectives but that is true of any judge. (We have always been cautious about expressing public support for any nominee, because we are frequent Supreme Court litigants and did not want to appear to be pandering to a potential vote in one of our cases).